Investigations - What an Employer Should Know

What is the Human Rights Commission?

The Human Rights Commission (HRC) is an independent county agency
created by Board of Supervisors in 1964 to eradicate discrimination in
employment, housing public accommodations, education and credit. The
Fairfax County Human Rights Ordinance prohibit employment
discrimination on the basis of race, color, sex, religion, national
origin, marital status, age, familial status, or disability.

HRC has authority to receive, initiate and investigate charges of
discrimination filed against employers who have a statutory minimum
number of employees.

HRC's role in an investigation is to fairly and accurately evaluate the
charge allegations in light of all the evidence obtained.

What happens when a charge has been filed against me?

You will always be notified that a charge of discrimination has been
filed and you will be provided with the name and contact information
for the investigator assigned to your case. A charge does not
constitute a finding that your company engaged in discrimination. The
HRC has a responsibility to investigate and determine whether there is
a reasonable cause to believe discrimination occurred.

In many cases, you may opt to resolve a charge early in the process
through mediation or settlement. At the start of an investigation, HRC
will advise you if your charge is eligible for mediation, but feel free
to ask the investigator about the settlement option. Mediation and
settlement are voluntary resolutions.

During the investigation, you and the Charging Party will be asked to
provide information. Your investigator will evaluate the information
submitted to determine whether unlawful discrimination has taken place.
You may be asked to:

submit a statement of position. This is your opportunity to
tell your side of the story and you should take advantage of it.

respond to a Request for Information (RFI). The RFI may ask
you to submit copies of personnel policies, Charging Party's
personnel files, the personnel files of other individuals and other
relevant information.

permit an on-site visit. While you may view such a visit as
being disruptive to your operations, our experience has been that
such visits greatly expedite the fact- finding process and may help
achieve quicker resolutions. In some cases, an on- site visit may
be an alternative to a RFI if requested documents are made
available for viewing or photocopying.

provide contact information for or have employees available for
witness interviews. You may be present during interviews
with management personnel, but an investigator is allowed to
conduct interviews of non-management level employees without your
presence or permission.

If the charge was not dismissed by the HRC when it was received, that
means there was some basis for proceeding with further investigation.
There are many cases where it is unclear whether discrimination may
have occurred and an investigation is necessary. You are encouraged to
present any facts that you believe show the allegations are incorrect
or do not amount to a violation of the law. An employer's input and
cooperation will assist HRC in promptly and thoroughly investigating a
charge.

Work with the investigator to identify the most efficient and least
burdensome way to gather relevant evidence.

You should submit a prompt response to the HRC and provide the
information requested, even if you believe the charge is frivolous.

If there are extenuating circumstances preventing a timely
response from you, contact your investigator to work out a new
due date for the information.

Provide complete and accurate information in response to requests
from your investigator.

The average time it takes to process an HRC investigation is about
182 days.

Our experience shows that undue delay in responding to
requests for information extends the time it takes to complete
an investigation.

If you have concerns regarding the scope of the information being
sought, advise the investigator. Although HRC is entitled to all
information relevant to the allegations contained in the charge,
and has the authority to subpoena such information, in some
instances, the information request may be modified.

Keep relevant documents. If you are unsure whether a document is
needed, ask your investigator. By law, you are required to keep
certain documents for a set period of time.

Your investigator will:

be available to answer most questions you have about the process.'

keep you informed about the charge process, including the rights
and responsibilities of the parties at the conclusion of the
investigation.

conduct an appropriate, thorough and timely investigation.

allow you to respond to the allegations.

inform you of the outcome of the investigation.

Once the investigator has completed the investigation, HRC will make a
determination on the merits of the charge.

If HRC determines that there is no reasonable cause to believe that
discrimination occurred, the charging party will be issued a letter
called a Dismissal and Notice of Rights that tells the
charging party s/he has the right to file a lawsuit in federal
court within 90 days from the date of receipt of the letter. The
employer will also receive a copy of this document.

If HRC determines there is reasonable cause to believe
discrimination has occurred, both parties will be issued a
Letter of Determination stating that there is reason to
believe that discrimination occurred and inviting the parties to
join the agency in seeking to resolve the charge, through an
informal process known as conciliation.

Where conciliation fails, HRC has the authority to enforce
violations of its statutes by filing a lawsuit in federal court. If
the HRC decides not to litigate, the charging party will receive a
Notice of Right to Sue and may file a lawsuit in federal
court within 90 days.

How does a charge get resolved?

HRC offers employers many opportunities to resolve charges of
discrimination. Successfully resolving the case through one of these
voluntary processes may save you time, effort and money. Methods of
resolution include:

HRC has greatly expanded it's mediation
program. The program is free, quick, voluntary and confidential. If
mediation is successful, there is no investigation.

If the charge filed against your company is eligible for mediation, you
will be invited to take part in the mediation process. If mediation is
unsuccessful, the charge is referred for investigation.

Advantages of Mediation

HRC's mediation program is free.

Mediation is efficient. The process is initiated before an
investigation begins and most mediations are completed in one session,
which usually lasts for one to five hours.

The average processing time for mediation is 84 days.

The mediation program is completely voluntary.

Successful mediation results in the closure of the charge filed
with HRC. If mediation is unsuccessful, the charge is referred for
investigation.

Mediators are neutral third parties who have no interest in the
outcome of the mediation.

Mediation is a confidential process. The sessions are not
tape-recorded or transcribed. Mediator notes taken during the mediation
are discarded. Information learned during the mediation can not be used
during an HRC investigation if the mediation is unsuccessful.

Mediation is an informal process. The goal of mediation is not
fact finding. The purpose is to discuss the charge and reach an
agreement that is satisfactory to all parties.

Settlement agreements secured during mediation are not admissions by
the employer of any violation of laws enforced by the HRC.

Mediation avoids lengthy and unnecessary litigation.

Settlement agreements secured during mediation are enforceable.

The overwhelming majority of employers and charging parties
participating in HRC mediation program are satisfied with the
process and would use it again.

Mediation can help the parties understand why the employment
relationship broke down.

Mediation can help the parties identify ways to repair an ongoing
relationship.

To learn more about HRC's mediation program, and how to participate in
it, visit the mediation section
of the website.

Charges of discrimination may be settled at any time during the
investigation. HRC investigators are experienced in working with the
parties to reach satisfactory settlements. You should contact the
investigator if you are interested in resolving your charge through
settlement.

Advantages of Settlement

Voluntary settlement efforts can be pursued at any time during
the investigation, but settling a charge early may save you the time
and effort associated with investigations.

Settlement is an informal process. The goal of settlement is to
reach an agreement that is satisfactory to all parties.

There is no admission of liability.

If the parties, including HRC, reach a voluntary agreement, the charge
will be dismissed.

HRC is statutorily required to attempt to resolve findings of
discrimination through "informal methods of conference, conciliation,
and persuasion." See 42 U.S.C. 2000e-5. After the parties have been
informed by letter that the evidence gathered during the investigation
establishes that there is "reasonable cause" to believe that
discrimination has occurred, the parties will be invited to participate
in conciliation discussions. During conciliation, your investigator will
work with you and the Charging Party to develop an appropriate remedy for
the discrimination. We encourage you to take advantage of this final
opportunity to resolve the charge prior to HRC considering the matter for
litigation.

Advantages of Conciliation

Conciliation is a voluntary process.

Conciliation discussions are negotiations and counter-offers may be
presented.

Conciliation offers the parties a final opportunity to resolve the
charge informally - - after an investigation has been conducted,
but before a litigation decision has been reached.

How else can HRC assist me?

HRC's outreach, education, and technical assistance efforts are vital
components of our mission to eradicate employment discrimination. Our
outreach program is designed to encourage voluntary compliance with the
anti-discrimination laws and to assist employers, employees and
stakeholder groups to understand and prevent discrimination. Take
advantage of our expertise in the area of employment discrimination.

Many of our technical assistance materials are available free of charge.
Copies of the laws enforced by HRC as well as HRC regulations are
available on our website. The website also offers many of our enforcement
and policy guidances and other materials that you may find helpful.
Pamphlets and brochures about HRC and the laws it enforces can also be
obtained by completing the publications
request form on the website or by calling 1-800-669-3362 (voice),
1-800-800-3302 (TTY) or 1-513-489-8692 (Fax).

We offer no-cost outreach and educational programs which make HRC staff
available for presentations and participation in meetings with employees,
employers, community organizations and other members of the general
public.

We also offer fee-based training and technical assistance programs
throughout the country.